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The Relevance of State Constitutional Rights to A Federal Constitutional Right:
Eugene suggests that the existence of state constitutional rights is relevant to whether there is an analogous federal constitutional right because it sheds light on "whether the right is firmly rooted in American law." But I'm not sure how firmly rooting a right in state constitutions sheds light on whether the U.S. Constitution protects it.

  As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside). So a state can establish a constitutional right not to have one's labor treated as a commodity, see New York Constituion, Art. I, Sec. 17 ("Labor of human beings is not a commodity nor an article of commerce and shall never be so considered or construed."). Or it can establish a constitutional right to have English as the official language, see Arizona Constitution, Art. 28. Or it can establish a constitutional right to have contributory negligence treated as a question of fact for the jury, see Oklahoma Constitution, Section XXIII-6.

  State constitutions are chock full of such things. But as far as I know, these state constitutional rights don't generally change the meaning of the U.S. Constitution. Constitutional rights don't generally seep from one sovereign to another.

  Granted, state constitutional law can become relevant to federal constitutional law in some contexts. Take the Eighth Amendment (please!). Under the Supreme Court's current head-counting approach to the Eighth Amendment, state constitutional law could in fact influence whether a particular punishment amounts to "cruel and unusual punishment." But I don't see the relevance of that head-counting approach in the Second/Ninth/Fourteenth Amendments-and-Associated-Penumbras context that we are considering here.
Kazinski:
I pondered that question, and I came to the conclusion that if the State Courts were applying common law, the analysis could very well be germane to Federal law. That seems to be the situation in several of the cases Eugene discusses.
7.16.2008 8:46pm
Ohismith (mail):
I agree that there's not much light shed by looking at state constitutions, because, as in Calif., it sometimes seems that the state adds things to the constitution (like a right to privacy in Calif) precisely because it seems to be missing from the federal constitution.
7.16.2008 8:56pm
jim47:

As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside).

I am not so certain that the question of "whether [a] right is firmly rooted in American law" is not thoroughly enmeshed in "republican form of government questions."

A central aspect of republicanism is that power derives from popular consent; and many rights deemed to be deeply rooted in the American tradition have classically been linked to the idea that one may not consent to the transfer of certain powers over oneself.

To some degree the enumeration of rights in state constitutions may reflect popular sense of the mandates of republicanism.
7.16.2008 9:00pm
krs:
I don't see the relevance of that head-counting approach in the Second/Ninth/Fourteenth Amendments-and-Associated-Penumbras context that we are considering here

Really? There's no established analytical for determining the scope of/applying the Second and Ninth Amendments, as far as I can tell. Head-counting would seem out of place in the First Amendment context, or in the 4th, 5th and 6th Amendments, but what is is about the Second and Ninth that makes that inappropriate?

Also, if your agenda is to make up a right to put in the U.S. Constitution, why not take a page from the Eighth Amendment cases? Justice Kennedy has said that you can look to whatever other sovereigns you want to cya when you write the opinion.
7.16.2008 9:03pm
arbitraryaardvark (mail) (www):
Some constitutional rights are ambiguous, and it isn't always clear what the drafters and ratifiers intended, which is part of the inquiry in resolving ambiguity.
State constitutional provisions adopted between 1770 and 1790 can be helpful in showing what certain legal terms were understood as. Provisions adopted after 1970 are less so.
For example, if somebody was claiming a ninth amendment right to keep sheep in their garage, it would be relevant if every early constitution contained a sheep in the garage provision, especially if it said something like "the traditional right of Englishmen to keep sheep in the garage shall not be impuned."
For example, if someone were claiming that the right to a jury trial included a right of jury nullification, it would be relevant that a few early constitutions did recognize the right in all cases, that many recognized it in some cases, that some were silent, and none denied it.
In the case of guns, the state constitutional provisions helped support an interpretation that an individual right was involved, and it was not just a federalism concern.
The exclusionary rule is an example of a constitutional principle first found under state constitutions that later made the jump to the federal constitution. When around 1962 the Supremes got a lot more involved in equal protection of voting rights, they borrowed heavily from 10 years of precedent under state free and equal elections clauses.
I'm sure you can think of a number of fourth amendment examples.
7.16.2008 9:20pm
darelf:
But I'm not sure how firmly rooting a right in state constitutions sheds light on whether the U.S. Constitution protects it


Of course it does. It's in the text of the Constitution itself, in the 9th and 10th Amendments.

Huge warning: Not a lawyer. Just usin' my krazy English-readin' skillz
7.16.2008 9:22pm
arbitraryaardvark (mail) (www):
heavily from 100 years of precedent
7.16.2008 9:22pm
OrinKerr:
The exclusionary rule is an example of a constitutional principle first found under state constitutions that later made the jump to the federal constitution.

Is it? I was under the impression that the the feds came up with that one and that it later made the jump to the states. See Weeks (1914).
7.16.2008 9:27pm
swg:

these state constitutional rights don't generally change the meaning of the U.S. Constitution.

Well that's not quite what you mean, right? Of course they don't change the meaning. But lots of state constitutions contain provisions similar to the federal constitution. (In fact, "generally", I'd say that state constitutions are similar to each other and to the federal constitution, and that strange provisions like the ones you cite are not representative at all of what's general.) A majority of those states interpreting a particular shared provision in a particular way is a good indicator of what that provision means in places where it hasn't yet been interpreted (e.g. federal constitution).
7.16.2008 9:28pm
OrinKerr:
A majority of those states interpreting a particular shared provision in a particular way is a good indicator of what that provision means in places where it hasn't yet been interpreted (e.g. federal constitution).

Whether or not that is true, it seems to me you are making a different point. Eugene's argument is that the existence of the right in state constitutions implies or creates or facilitates the creation of the right in the federal constitution. There is no textual right in the federal constitution. Where the issue is the interpretation of the same text found in two settings, I think that is an example of how "state constitutional law can become relevant to federal constitutional law in some contexts."
7.16.2008 9:39pm
Dave N (mail):
A state is perfectly free to grant broader rights than protected by the U.S. Constitution--the rights just cannot be narrower. That is why the action is at the state level in light of Kelo, for example. Just because the federal constitution allows something doesn't mean the state counterpart must allow it too.

I remember when I was in law school that the Utah Supreme Court was wrestling with the concept of whether the state constitution had broader protections than the federal counterpart. Finding that it did in what would be a 4th Amendment federal context, the next question became whether an analogous remedy (suppression) was also required for searches and seizures that violated the Utah Constitution but not the U.S. Constitution.
7.16.2008 9:43pm
swg:
I guess I understood "some contexts" to refer to contexts similar to the eighth amendment, where what's required by the actual federal constitution is determined (at least partially) by what states are doing.

Eugene's argument is that the existence of the right in state constitutions implies or creates or facilitates the creation of the right in the federal constitution.

Is that really what he's saying? I thought he was saying:

thinking about a right that many constitution-drafters found important enough to expressly secure may provide a broader perspective on American constitutionalism.
Which would be one of those "other contexts" that you speak of, right?
7.16.2008 9:48pm
swg:
oops - the last sentence in my previous post shouldn't be in the block quote. I'm bad at that.
7.16.2008 9:49pm
db:
Professor Kerr,

Here's a case to consider: Faretta v. California, 422 U.S. 806 (1975), which held that a criminal defendant has the right under the federal constitution to refuse counsel and represent himself. That was in part a Burger Court "there oughta be a law" sort of opinion, but it also embodied the historical, state-counting approach you're talking about. See id. at 826-32 (describing founding-era recognition of the right to self-representation in the states and by Congress).

In other posts and comments, you've noted that we might expect Justice Scalia to be particularly reluctant to recognize a constitutional right to self defense, given his general skepticism of unenumerated rights. I think that's a fair point. It's interesting to note, though, that Justice Scalia has been the current Court's most ardent champion of the--wholly atextual--right to self-representation. See Indiana v. Edwards, 128 S. Ct. 2379, 2389 (2008) (Scalia, J., dissenting); Martinez v. Court of Appeal, 528 U.S. 152, 165 (2000) (Scalia, J., concurring in the judgment). To be sure, he would probably prefer to locate it in the Due Process Clause, rather than in the Sixth Amendment,see Martinez, 528 U.S. at 165, but he's quite willing to accept the right notwithstanding its lack of textual pedigree.

Of course, it may be that a right to self defense differs in important ways from the right to self-representation. Still, it's another data point think about.
7.16.2008 9:50pm
swg:
and the block quote, by the way, is from Eugene's post.
7.16.2008 9:50pm
Trevor Morrison (mail):
I've been following the exchange between Eugene and Orin with interest. One somewhat tangential point, though:

There's a pretty major omission in Orin's statement that, "As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside)." The major limitation on this "rule" is not the Guarantee Clause (though it is something of a limitation). It's the Supremacy Clause.
7.16.2008 9:53pm
Cornellian (mail):
The Bar-Bri quick and dirty rule for multiple choice constitutional law questions on the bar exam is that nothing ever violates the republican-form-of-government clause.

It's an oversimplification, but not by much. The Supremacy clause is, therefore, a much greater impediment to putting stuff in a state constitution. Technically though, it's not a barrier to putting stuff in a state constitution, only a barrier to enforcing that stuff.
7.16.2008 9:57pm
darelf:
Don't Beard ( 158 U.S. 550 (1895) ) and Brown (256 U.S. 335 (1921)) find a right to self-defense, and in support for those opinions we find reliance on State-level law and decisions?
7.16.2008 10:02pm
jim47:

The Bar-Bri quick and dirty rule for multiple choice constitutional law questions on the bar exam is that nothing ever violates the republican-form-of-government clause.



From the perspective of the judiciary, sure. But Reconstruction provides a pretty significant example of Congress finding that all sorts of southern state constitutions violated the republican-form-of-government clause and getting their way with that assessment.
7.16.2008 10:21pm
Chris 24601 (mail) (www):
I think state constitutions are certainly probative of the American tradition of civil liberty. If we construe "the privileges or immunities of citizens of the United States" to mean the privileges that historically and customarily are given to all citizens, then state constitutional law is certainly relevant. See Cong. Globe, 39th Cong., 1st Sess. 1117 (Rep. James Wilson) (defending an early draft of the Civil Rights Act of 1866: "It provides for the equality of citizens of the United States in the enjoyment of 'civil rights and immunities.' What do these terms mean? ... It is not the object of this bill to establish new rights, but to protect and enforce those which already belong to every citizen"); Cong. Globe, 42nd Cong., 2nd Sess. 843 (1872) (Sen. Sherman) ("What are those privileges and immunities? ... The great fountain-head, the great reservoir of the rights of an American citizen is in the common law..."); cf. Washington v. Glucksberg, 521 U.S. 702, 721 (1997) ("Our Nation's history, legal traditions, and practices ... provide the crucial guideposts for responsible decisionmaking ... that direct and restrain our exposition of the Due Process Clause."); Corfield v. Coryell, 6 F. Cas. 546, 551 (C.C.Pa. 1823) (Article IV comity clause covers only "those privileges and immunities ... which have, at all times, been enjoyed by the citizens of the several states which compose this Union"); Calabresi &Agudo, Individual Rights Under State Constitutions When the Fourteenth Amendment Was Ratified in 1868: What Rights are Deeply Rooted in American History and Tradition?, at 6 ("[W]hat were the privileges or immunities that most Americans had in 1868? To shed light on this question, we decided to look at state constitutional law.").
7.16.2008 10:38pm
Anon21:
Chris 24601 suggests a point in the Privileges or Immunities context (such as it is) that I thought to bring up in the substantive due process context--namely, that history and tradition are at least nominally a part of the inquiry when the Court examines arguments for fundamental unenumerated rights. State constitutional law could be one such source of history and tradition relevant to that inquiry. Standard disclaimer applies--courts often selectively incorporate history and tradition to match the result they wish to reach, whether that be pro- or anti-fundamental right.
7.16.2008 11:35pm
David E. Young (mail) (www):
A couple of historical points that might help those interested in the above commentary:

First, all of the provisions of the first eight amendments were derived rather directly from the protections found in the existing state declarations of rights. What Madison promised to support in order to obtain enough votes for ratification of the U.S. Constitution in the Virignia Convention was directly based on the 1776 Virginia Declaration of Rights with added language from the declarations of other states, most notably Pennsylvania.

Second, while the legal profession has taken early American historical arms related discussion into account in relation to Second Amendment intent in recent decades, I am unaware of any attempt to similarly rely on early American historical discussion of privileges and immunities references for determining intent. Note that I emphasized a number of significant instances in which privileges and immunities were mentioned in early American history in The Founders' View of the Right to Bear Arms. Privileges and immunities was language generally used to refer to ALL of the rights that the people hold.
7.17.2008 12:24am
Tony Tutins (mail):
I'd bet that after a couple of dozen states recognize same-sex marriage, the Defense of Marriage Act would be considered indefensible. Similarly, if enough states recognize the right of the terminally ill to end their lives humanely, the Supreme Court should follow suit.
7.17.2008 12:39am
ReaderY:
Rightly or wrongly, the Supreme Court has a line of substantive Due Process cases holding that the 5th and 14th Amendments incorporate the substance of unenumerated rights which are "deeply rooted in this Nation's history and tradition." One may agree or disagree with this formulation, but given that it exists, State constitutions, laws, and court decisions are clearly relevant to the question of how deep any given set of roots go.
7.17.2008 1:29am
OrinKerr:
There's a pretty major omission in Orin's statement that, "As a general rule, states are free to draft pretty much whatever constitutions they want (republican form of government questions aside)." The major limitation on this "rule" is not the Guarantee Clause (though it is something of a limitation). It's the Supremacy Clause.

Trevor, of course you're right that the supremacy clause applies. But I was thinking about federal constitutional limitations specifically on state constitutions -- that is, on the structure of the governments -- not on state practices generally, pursuant to whatever constitutions they enact. So for example, states don't need a state fourth amendment analog in their constitutions, even though they can't violate the Fourth Amendment. That's what I was thinking when I wrote that, at least.
7.17.2008 1:37am
John P. Lawyer (mail):
Orin,
Perhaps I am missing Eugene's point, but isn't he suggesting that, consistent with the Court's substantive due process jurisprudence, one looks (in part) to see how "deeply rooted in [our] Nation's tradition and history" an unenumerated "right" is in determining whether to constitutionalize it as protected under the liberty component of the due process clause. And one way of assessing a "right's" deeply rootedness is to look at whether state constitutions (at the founding, I suppose - though the timing of when such a provision was enacted might be a relevant consideration) recognize such a right? MAybe I am missing something - but I thought that was Eugene's basic point. Why do you think (aside from rejecting the substantive due process rubric completely) looking to state constitutional provisions would be wrong in performing this analysis?
7.17.2008 2:23am
Fub:
arbitraryaardvark wrote at 7.16.2008 8:20pm:
For example, if someone were claiming that the right to a jury trial included a right of jury nullification, it would be relevant that a few early constitutions did recognize the right in all cases, that many recognized it in some cases, that some were silent, and none denied it.
I believe that Indiana, Maryland, and Georgia still have constitutional provisions that "the jury shall be judge of fact and law". But no defendant has the right to argue nullification as far as I know. I think that state court decisions in all those states have turned the provision into a Borkean inkblot.

California originally had a similar provision, but only applicable in cases of criminal libel. The provision was removed by the legislature in the 1980s. First they repealed the criminal libel statute, then submitted a sweeping "legislative cleanup of obsolete laws" to the voters. The constitutional provision was one tiny item of many in a huge list that had to be voted up or down entirely.
7.17.2008 2:27am
OrinKerr:
Excellent, db. Thanks.
7.17.2008 2:37am
BZ (mail):
From an ancient brief:

A State defines itself as a sovereign "[t]hrough the structure of its government and the character of those who exercise government authority." Gregory v. Ashcroft, 501 U.S. 452, 460 (1991). Several of these areas of State sovereignty lie beyond the general reach of federal laws, including the regulation of a State's internal operations. "A State is entitled to order the processes of its own governance." Alden v. Maine, 527 U.S. 706, 119 S.Ct. 2240, 2264 (1999)("Such plenary federal control of state government processes denigrates the separate sovereignty of the States.").
This is not a new thought, as this Court noted over a century ago: "To [the States] nearly the whole charge of interior regulations is committed or left." Lane County v. Oregon, 7 Wall. 71, 76 (1869); Oregon v. Mitchell, 400 U.S. 112, 126 (1970)(Black, J., joined by the Chief Justice and three other Justices)("And the Equal Protection Clause of the Fourteenth Amendment was never intended to destroy the States' power to govern themselves, making the Nineteenth and Twenty-fourth Amendments superfluous.").
Under this Court's recent decisions, the Tenth Amendment protects the reservation of "original powers" of a State. U.S. Term Limits v. Thornton, 514 U.S. 779, 801 (1995); Alden, 119 S.Ct. at 2259, quoting, Nevada v. Hall, 440 U.S. 410, 425 (1979).
7.17.2008 9:14am
arbitraryaardvark (mail) (www):
Me: The exclusionary rule is an example of a constitutional principle first found under state constitutions that later made the jump to the federal constitution.
OK: Is it? I was under the impression that the the feds came up with that one and that it later made the jump to the states. See Weeks (1914).
I thought I remembered Indiana C.J Randall Shepard saying or writing that Indiana had the exclusionary rule before the feds did. But google doesn't seem to back that up; I might have misremembered.
7.17.2008 12:42pm
Fat Man (mail):
"Constitutional rights don't generally seep from one sovereign to another."

Unless, they seep from the European High Muckety Muck Court of Socialist Human Rights, because Europeans are so much more sophisticated than those horrible people in fly-over country, and we should follow their example.
7.18.2008 1:12pm